We all know and recognise the famous “caution” –
“Joe Bloggs, you are being arrested for the murder of Jack Black. You do not have to say anything, but anything you do say may be taken down and used in evidence against you.”
You’d think, then, that anyone who has been arrested would know they had been arrested, and would have the right not to answer any questions until they have a solicitor present.
Well, if the caution was delivered exactly as it’s shown here, that would be the case. But there are two significant problems with this.
Firstly, it’s rarely delivered as clearly, or as obviously. Often the caution is hidden within a whole bunch of “information” fired at the “suspect” (who probably has no idea he is a suspect) by the arresting officer or officers.
Secondly, many people who are taken into a police station for questioning “under caution” have not actually been arrested.
In Scotland, there are two circumstances in which a person will be cautioned, held and questioned without actually having been arrested.
The first is as a “Voluntary Attender.” Most people believe, at this stage, they are witnesses, helping the police with their enquiries. What they do not understand is that they are already a suspect, and anything they say may be used against them.
Consider the following, from a real life case:
The police officer first explains why they are in the police station, saying they need more information about the deceased from her “immediate friends” and a clearer understanding of the witness’s “observations at that time.” It’s all very innocuous, with no hint that the “witness” is in any way “under suspicion.” The officer then asks the witness to complete and sign a declaration of “Voluntary Attendance” which says “I agree to remain with police for interview regarding……” and then “I understand I may terminate this interview at any time.”
This might seem self evident – once there’s nothing more you can tell the police, the interview will naturally come to an end…. won’t it? But then, after all this softly, softly introduction, and after the form is signed, the officer states, “OK, in fairness… it’s a procedural thing… I have to caution you that you’re not bound to answer any of these questions we put to you today, but if you do, your answers will be recorded, may be noted, and may be used in evidence.”
Helping the police with their enquiries as a witness, you may believe the fact that it’s just a “procedural thing” because the officer didn’t say “may be used in evidence against you.” There would be no point in obtaining information if it wasn’t going to be used in evidence – it’s the omission of the critical words “against you” that keeps the person believing he only a witness.
Weeks later comes “Detention under Section 14.” Here the “witness” is told he is being detained for questioning. He is told “OK, you’re going to be asked questions about the murder of X, you’re not bound to answer these but if you do, your answers will be recorded and may be used in evidence.” Once again, the words “against you” are omitted. This time, though, he is not free to terminate the interview – he must stay with the police for the full duration allowed by Section 14, after which the police must either arrest him, or set him free. But this is not explained to him by the police. He is still not told he is a suspect, and worse, he is not entitled to have a solicitor present, either as a Voluntary Attender or under Section 14.
He asks if he has been arrested and is told “No.” He asks if he is being accused of the murder and is told “No.”
Put yourself in that position. You haven’t been arrested, you haven’t heard the proper version of “the caution,” you’re not being accused of anything and you haven’t been told that your answers may be used in evidence against you. What would you think had happened to you?
If you ever find yourself in a police station, helping police with their enquiries and are told that your evidence may be used “in evidence,” beware. Your witness status has just turned to suspect status, and you won’t even know it.